by Christian Schappel
Courts have ruled that managers and supervisors can be held personally liable for FLSA violations. And now, in a new twist, courts are saying you can be individually liable for FMLA violations as well. Here’s why and when.
In a nutshell, the FMLA says that an employer can be:
“… any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer …
And employers can be held liable for FMLA violations — even if those “employers” are individuals within a company.
So how do you determine who qualifies as an employer under the law? Courts have recently ruled that the FMLA’s definition of employer closely tracks the definition of employer under the FLSA and, therefore, have reasoned that the standards used to evaluate employers under the FLSA should be applied to FMLA cases as well.
In other words, courts can look at the “economic reality” of a situation to determine an individual’s level of control over an employee — and, thus, that individual’s liability under the FMLA.
Employee claims HR director is liable
Recently, the U.S. Court of Appeals for the Second Circuit used this very line of thinking to determine that Shaynan Garrioch, the director of HR for the Culinary Institute of America (CIA), could potentially be held individually liable for FMLA violations allegedly committed against Cathleen Graziadio, CIA’s payroll administrator.
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by Jared Bilski
HR pros are a group that always likes to be one step ahead of the curve. And the feds just released some key benefits figures that will help you do just that.
The Departments of Health and Human Services (HHS) have released next year’s out-of-pocket maximums for employee health plans.
The out-of-pocket limits for non-grandfathered plans beginning on or after January 1, 2017 are $7,150 for single coverage (up from $6,850 in 2016), and $14,300 for family coverage (up from $13,700).
The out-of-pocket maximums include plans’ annual deductibles as well as any in-network cost-sharing obligations plan participants have after the deductible is met.
What isn’t required to be included with the out-of-pocket maximums: premiums, pre-authorization penalties, and any out-of-pocket expenses that are associated with out-of-network benefits.
Obamacare’s ’embedded’ rule
Another thing firms need to be mindful of with these limits is the “embedded” out-of-pocket maximum rule.
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by Christian Schappel
The ADA’s interactive process has been one of the more vexing aspects of employment law recently.
Not only has the EEOC ramped up its oversight of this complex area, but the regulations surrounding the interactive process don’t paint a black-and-white picture of what exactly employers need to do.
Interactive process: a definition
As you know, the need to initiate the interactive process with an employee occurs when an employer first finds out that the employee is suffering from a disability that may affect the person’s ability to perform his or her job.
In a nutshell, the process requires the employer to “interact” with the employee in an attempt to seek out a reasonable accommodation for the disability that would allow the employee to continue to perform the essential functions of his or her job.
The problem is, the EEOC has said the process will likely be different for every employee. As a result, employers must approach it on an individual basis — no templates, scripts or specific step-by-step process instructions.
As a result, employers are struggling to know what they can and can’t do when an employee requests an accommodation (or when the potential need for one becomes known).
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by Christian Schappel
Yet another common employer policy has come under fire from the National Labor Relations Board (NLRB). It doesn’t matter if your workforce is unionized or not — if you’ve got this policy, it could be deemed illegal.
What’s the policy? Asking workers to keep internal investigations confidential.
In a case that involved the telecommunications giant T-Mobile USA Inc., an administrative law judge for the NLRB just ruled that asking employees to keep information that’s shared/discussed during internal investigations confidential infringes upon workers’ rights under the National Labor Relations Act (NLRA).
Employee reports harassment
Angela Agganis was a customer service rep for a T-Mobile USA store in Oakland, ME, when she went to a T-Mobile HR representative, Karen Estes, to report a sexual harassment allegation against her coach.
Afterwards, Estes informed Agganis that she would have to file an incident report. Estes then gave Agganis T-Mobile’s “Notice and Acknowledgement of Duty to Cooperate and Confidentiality,” and she told Agganis to sign and date the notice form.
The notice stated, in part:
“You should keep confidential all communications between you and the Corporate lnvestigator(s) concerning this matter throughout the pendency of this investigation unless permitted by law. This includes all questions and answers during this interview, any written statement that you provide to the investigator(s), and all other information or documents provided to the investigator(s) in connection with this matter.”
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by Christian Schappel
This employee committed workplace misconduct and was fired. She even admitted to the misconduct. So why in the world was her sex discrimination lawsuit allowed to stand?
Because, according to the U.S. Court of Appeals for the 11th Circuit, she’d presented enough evidence that her gender may have been a “motivating factor” in her termination.
Auto mechanic Jennifer Chavez claims that after she announced to her employer, Credit Nation Auto Sales, that she was transitioning from male to female that management was looking for a reason to get rid of her.
In support of her claims, Chavez said after she announced her intent to undergo gender transition surgery:
- Credit Nation’s president said he was “very nervous” about her gender transition and the “possible ramifications”
- the president said he thought Chavez would “negatively impact his business”
- Chavez was asked “not to wear a dress back and forth to work”
- she was told she needed to “tone it down” and not talk as much about her gender transition in the shop, and to be “very careful” because the president “didn’t like” the implications of Chavez’s planned gender transition.
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by Christian Schappel
Senate and House Republicans want the Obama administration to do a little more research before pushing through its changes to the FLSA’s white-collar overtime exemption regulations.
Legislation has been introduced in both branches of Congress to put a stop to the DOL’s final rule on the overtime exemptions, which was just submitted to the White House’s Office of Management and Budget for review — the final step before the rule is made pubic with an effective date.
The bill is called the Protecting Workplace Advancement and Opportunity Act. It would require the DOL to conduct a comprehensive economic analysis on the effect the overtime reg changes would have on small businesses, nonprofits and public employers before it’s officially on the books.
If passed, the bill could potentially accomplish two other things:
- It could push the DOL’s final rule far enough into the future that it would be at the mercy of the next Congress and president. As you may recall, the Congressional Review Act says that if a major rule is submitted to Congress with fewer than 60 legislative session days on its calendar, the next Congress gets 60-days to consider the rule.
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by Christian Schappel
Employers have been asking themselves this question since e-cigarettes came on the market: Should we let people use them at work? Finally, a federal agency has provided an answer.
And that answer is … no.
It came from the National Institute for Occupational Safety and Health (NIOSH), which is responsible for conducting research and making recommendations for the prevention of work-related injury and illness.
Better to be safe …
Was there some new study on the health effects of these devices that made NIOSH make this recommendation to employers? No.
In fact, NIOSH admits that there is very limited data on whether or not e-cigarettes are harmful. But, in its opinion, it’s better to be safe than sorry – at least until more is known about the health effects of e-cigarettes and other related devices.
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